Tuesday, October 14, 2008

Last week, Edwin Stratton, appeared in magistrates court to defend himself on a charge of cannabis cultivation. He had refused a caution on arrest.His legal defence was put together by Casey Hardison and he was represented by Darryl Bickler in court. He is running a brilliant and innovative defence claiming that the Government is abusing its power by unlawfully discriminating against those who are in possession of drugs that have been criminalised.

Transform do not claim to be legal experts and, rather than attempt to translate it for you, I have pasted the skeleton defence and Ed's press release below.

We want to stress that some legal experts have expressed doubts about this defence, and that it is crucial that anyone seeking to make use of it, gets the best professional legal advice they can.

Transform is delighted to see some headway being made here, (particularly with this defence) and we are keen to hear from legal experts who may be able to provide support for Ed's defence.

The case has been adjouned until 6 November so that Ed can secure legal representation and make an application to the Divisional Court for a stay.

Skeleton Argument for Edwin Stratton

1. The defendant client objects to this indictment under s7 of the Indictment Act 1915 due to an executive abuse of power that threatens his basic human rights -and the rule of law. Cf. Archbold §1-191 (j) and 4-47 et seq.

2. Accordingly the defendant seeks either 1) to stay the indictment; 2) an adjournment of these proceedings so he can pursue the matter in the Divisional Court; or 3) For this court to decline jurisdiction and require the matter to be pursued in the Divisional Court. Cf. R. v. Central Criminal Court, ex p. Randle and Pottle, 92 Cr.App.R. 323, DC; R v Belmarsh Magistrates ex parte Watts [1999] 2 Cr.App.R. 188 at 195; Archbold § 1-192 & 4-50.

3. The abuse:

a. The defendant believes that the Misuse of Drugs Act 1971 c.38 (“the Act”) is being applied to him in an arbitrary and discriminatory manner based on historical and cultural factors that lack a consistent and objective basis contrary to Article 14 and within the ambit of other convention rights. This denies equal protection to the defendant, alleged to be engaged in property activities with “controlled drugs”, as defined by s2(1)(a) of the Act, with respect to analogous persons engaged in the identical property activities with the dangerous or otherwise harmful drugs alcohol and tobacco.

b. The Government’s Position:

"The Government's policy is and has been to regulate drugs which are classified as illegal through the 1971 Act and to regulate the use of alcohol and tobacco separately. This policy sensibly recognises that alcohol and tobacco do pose health risks and can have anti-social effects, but recognises also that consumption of alcohol and tobacco is historically embedded in society and that responsible use of alcohol and tobacco is both possible and commonplace".

c. The Government’s position admits discrimination on the grounds of legal status and property within the ambits of Article 1 of the First Protocol, “protection of property”, Article 8 respect for private life, inter alia. More, the Government’s position includes errors of law and fact.

d. Unjustifiable discrimination: The Act is interpreted and implemented unequally with respect to consumers, producers and traders of (a) harmful drugs used by minorities, the drugs currently controlled under the Act, and (b) equally harmful drugs used by the majority, alcohol and tobacco, arbitrarily excluded from the Act. The Act therefore unjustifiably discriminates between those in the same position, those who consume or trade equally harmful drugs. Cf. A & Others v SSHD [2004] UK HL 56 at 46 et seq; Pretty v UK [2002] 35 EHRR 1 at para 77: “Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law.”

e. Failure to justifiably discriminate: regulations for the non-medical use of those drugs excluded from the Act, alcohol and tobacco, distinguish between reasonably safe, responsible drug use and trade, and unreasonably harmful, irresponsible drug use, production and trade. Regulations for the non-medical use of those drugs included by the Act fail to make this justifiable distinction, instead applying a blanket prohibition of all property rights of possession, supply, production and export/import. The Act also fails to justifiably distinguish two distinct forms of unreasonably harmful use, production or trade: (a) use or trade unreasonably harmful to the consumer or trader alone, ‘voluntary risks’, and (b) use or trade unreasonably harmful to others, ‘involuntary risks’. Voluntary risks do not infringe human rights while involuntary risks do. The Act therefore fails to justifiably discriminate between those in different situations. Cf. Thlimmenos v Greece [2000] 31 EHRR 411 para 44: “The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

4. As a result of this abuse by the executive a fair trial is not possible. The Defendant’s remedy lies with the Divisional Court.

CPS Guidance – Abuse of Process - Misuse of Process - f. Unconscionable behaviour by the executiveThis category of the doctrine of abuse is more exceptional than those described above. It arises from the duty of the High Court (first articulated in the case of Bennett v Horseferry Magistrates Court) to oversee executive action so as to prevent the State taking advantage of acts that threaten either basic human rights or the rule of law (including international law).

Applications for a stay based on this ground cannot be determined in any tribunal below the High Court because they involve the judiciary exercising a supervisory function over the actions of the executive (Bennett v Horseferry Road Magistrates Court, per Lord Griffiths at 152 H-J). Where the defence wishes to make such an application at the beginning or as a preliminary to trial, the proper procedure is for the instant proceedings to be adjourned and for the defence to commence proceedings in the High Court for a declaration that continuing the prosecution would amount to an abuse of the process.

In the US Supreme Court (Railway Express Agency Inc v New York [1949], para 112), Justice Jackson explained why the courts have a duty to prevent the abuse of political power by upholding the right to equality before the law:

“There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”

9th October 2008 PRESS RELEASE

Government challenged on drugs law

Edwin Stratton, 43, of Leyton, London, is charged with production of cannabis under the Misuse of Drugs Act 1971 (“The Act”). He has today given notice of his intention to challenge the legitimacy of this prosecution in the High Court as an abuse of process. This assertion is evidenced by the bias and discrimination inherent in the policy that equally harmful drugs and those exercising property rights in such drugs should be treated differently in law. The defence claims a majoritarian abuse of power by the executive in the administration of drugs legislation. The rights afforded under the Human Rights Act 1998 guarantee freedom from arbitrary discrimination: this claim is grounded in the unequal protection afforded to drug property rights between ‘licit’ and ‘illicit’ drugs. This challenge seeks to hold the government and the Advisory Council on the Misuse of Drugs (“ACMD”) to account for an alleged irrational administration of the law which has led to countless thousands of lives lost and destroyed in the so-called ‘War on Drugs’.

1. Edwin is being prosecuted for his medical use of cannabis which he attempted to grow in the privacy of his home. He suffers from a hyper-sensitive form of coeliac disease which leaves him with constant pain and nausea for which cannabis is uniquely effective in his experience, and without the dreadful side-effects he experiences with prescription drugs.

2. Due to the nature of this legal challenge, which squarely puts the government’s application of the law in the spotlight - this case must, according to law, be heard in the High Court.

3. Edwin says: “Drugs legislation intends to protect us from harmful drugs. I absolutely agree with that aim, but the present policy is a disaster from a harm-reduction perspective. The legal classification of drugs is entirely inconsistent with the objective of creating a criminal tariff of punishments for drugs offences according to their relative harmfulness or potential for harm”.Support for this position has come from organisations such as Transform Drug Policy Foundation, Release, the Beckley Foundation, The Parliamentary Select Committee on Science and Technology and the ACMD’s own prevention working group in their 2006 report ‘Pathways to Problems’. The incoming chair of the ACMD co-authored a March 2007 report in the Lancet, which presented a hierarchy of drug harm as determined by experts, elucidating the arbitrariness of the current classification of drugs under the Act.

4. The discriminatory application of law is starkly obvious when we factor in the harms caused by alcohol and tobacco, which together kill 150,000 people in the UK every year. Despite over 800,000 hospital admissions last year due to alcohol abuse, cannabis users cause far less harm to themselves and others and yet are compelled not only to risk arrest, prosecution and imprisonment, but also must endure the risk of dealing with criminal elements, risk their health due to contaminants, and risk exposure to products of unknown strength – all of which Edwin sought to avoid by growing it himself. Despite awareness campaigns, the legal status of alcohol and tobacco falsely signifies that these drugs are safer than many controlled drugs; this results in a lack of proper legal protection for alcohol and tobacco users in comparison to the stringent controls over equally harmful controlled drugs. Edwin says that “my advisers consider that the government does not have the discretion in law to exclude dangerous drugs from the remit of the enforcement legislation on the arbitrary basis of ‘cultural and historical precedents’. Government insists that the responsible use of alcohol and tobacco can be maintained without subjecting either to controls under the Act, whereas this possibility is denied to users of other equally harmful drugs, these double standards perpetuate detrimental consequences to users of all kinds of drugs”.

see HM Government official response to the Cabinet Office Better Regulation Executive (September 27th 2007).

5. Edwin is a part of a campaigning network known as the nascent DEA (Drug Equality Alliance). Individuals can register their support by visiting www.drugequality.org - the group is seeking to achieve one million site hits this year to illuminate support for a much needed transformation of the impasse causing so much harm to people who use drugs of all kinds.

13 comments:

Well, I've been scratching my head for the last twelve hours. I've had the drug discrimination website open, I've downloaded a copy of the Misuse of Drugs Act, and I've been going nuts comparing the argument to the legislation. I couldn't grasp this argument about property so I poked around looking for definitions, then I ran into a quote by Thomas Jefferson: "government is instituted to protect property of every sort." And then it dawned on me, I remembered hearing about an early draft of the Declaration of Independence, which talked about life, liberty and the pursuit of property, which they changed to ‘happiness.’ After I paused to skin up I had a daydream about the field at Runnymede: wasn’t that about property? Specifically, the deprivation of “property without due process of law”? And isn’t that in the English Bill of Rights? So what they are really calling on here is an ancient liberty to stop government from depriving us of our property in an arbitrary or discriminatory manner.

Of course, Parliament can legislate to control the use of property but the goverment must implement the law in a fair, rational and consistent manner, and in accordance with the Human Rights Act 1998. Does anybody here think they are doing that?

Yeah, that's exactly it Mafficker. It centres around property, because we're talking about drugs property as well as the government's habit of depriving cannabis users of their property, such as plants; resin; lights, fans and other growing equipment; and of course, money paid in fines.

Regarding drugs property: possession, trading, trafficking, etc. these are the subject of illegality, not the actual drugs. All of these restrictions are about curtailment of property rights.

We consider that the government does not have the legal right to arbitrarily pick and choose which harmful drugs should be the subject of the Schedules of the Act. The Act's purpose is to protect society and individuals from the social problems caused by harmful or dangerous drugs per se, and tobacco and alcohol are the two most harmful and dangerous drugs if we measure by the list of casualties. Therefore, the schedules of the Misuse of Drugs Act should apply on an equal footing with other harmful drugs.

The government chooses to deal with alcohol and tobacco property 'separately'. The government explicitly states that they exclude alcohol and tobacco for 'historical and cultural' reasons, which 'lack a consistent and objective basis'. This means the exclusion of the harmful drugs alcohol and tobacco is arbitrary.

But it is a principle in law that similar situations should receive similar treatment, and so the practice of allowing the free-flow of the harmful drug alcohol in society, and even permitting wine-making, while imprisoning and otherwise depriving cannabis users of their property for choosing to use or grow an analogous drug such as cannabis, based on 'history' or 'culture' is clearly irrational and discriminatory.

Do the critical lawyers actually understand this issue at all? What irritates me is the disclaimer inserted in the first post about "legal experts". What legal advice can they offer? Basically all they have is 'plead guilty' - get a discount for being sorry, appologise and say you are unwell, under stress or some other pathetic ruse so the court is lenient. In my view such lawyers are not worthy to comment on Mr Stratton's case, never mind advise or represent him.

It is obviously lost on them that such a novel and audacious challenge necessarily involves breaking new ground - yet because they do not have a precedent for it they get cold feet. It is the same with the discrimination aspects of this case and experts wonderring what heading of discrimination they can tie this into; if experts in this area cannot recognise that if discrimination law is not constantly evolving with understanding (as indeed ought drug law to be according to the Misuse of Drugs Act 1971), then it is dead in the water - the understanding of this requires recognition that exposing new forms of discrimination manifests as the transformation of prejudice through enlightenment and reason, creating new cultural norms of acceptability, as has in part been achieved in the social sphere with issues of racial/sexual/gender discrimination, and entirely achieved within the legal sphere already. Presumably the legal experts would on the whole would have thought that the heroic fighters for emancipation throughout history should have kept their heads down.

I believe that the property issue is important as it illustrates that thge government is actually controlling people on an irrational basis, not drugs. It is also important as it opens up the claim under Article 14 as grounded in property to engage the Human Rights Act properly.

Now is the time for confidence, shun negative lawyers who believe their hands are tied - if the courts impose a heavy punishment for not pleading guilty and bringing these vital, life-saving measurs to the public attention, then that is a disgrace. If we are going to change anything we cannot walk in fear of telling the truth. Forget about lawyers urging caution for they seek to destroy this. The outcome of this equality issue is the end of many jobs in criminal justice and a more tolerant and just society - lawyers, drug dealers and governments cynically think that it is in their interests not to change it - shame on them, this is about exposing truth and as far as I know it is the only legal challenge running. Unless the so-called defence lawyers can come up with something better; I suggest they shut up and get on with their bread and butter processing of prosecutions readily funded by the legal aid scheme.

thats harsh anon. Transform support this move in as much as we support challenges to bad and unjust law - and can see the logic of the defense being made. But as non-lawyers we dont feel qualified to comment on the minutae of the case or recommend it as a course of action. The experts we have spoken to have made it clear they do not think it will succeed and said why - the defendent is well aware of this and going ahead on principled grounds. It is only right that as non-lawyers we make it clear that any individuals should take legal advice - if only so that they know what they are potentially letting themselves in for.

Laws can be and are changed following court challenges; including drug laws. As a tactic, we would support this broad approach but there is still a debate to be had about the best strategic legal avenues and cases to be pursued. If this case fails, as it may well, lessons will be learned and others will follow.

Steve, it is all well and good that you have consulted 'legal experts' who have told you why this challenge will fail, but would you please be kind enough to share their wisdom and the mouths from whence it came such that all could be more enlightened on this path? Frankly, we should all be pooling our resources and tackling this together rather than saying how great it is that someone is willing to get up, stand up, stand up for our rights! Qui Bono? Who benefits from the continuance of this irrational, discriminatory and ultimately misanthropic drug policy? Not I!

I think the important questions are: is the argument about discrimination a fair assessment of the facts, do we believe that it should succeed if the hearing is fair?

I think that the caution stems from a cynicism rooted in the premise that the court will do anything other than accede to this claim, irrespective of it merits. This negative disposition is unhelpful and almost excuses that outcome as inevitable. It denies the existence of real possibility, roots the future in the past, fails to recognise the fresh legal landscape of this novel claim from what has preceded it and the cultural shift evolving right now.

I don't know why there are so many persons in the drug campaigning industry who think that its a valuable contribution to say that "you know that you have no chance don't you". Oh really, and there was I thinking it was plain sailing, thank god we have these experts to curb our enthusiasm. I say if you believe drug users are discriminated against, say it loud and proud, and then if it gets knocked back, get outraged.

As anon said, all these experts are protecting is plea bargaining. What other options are there to stand up and be counted? I can agree with Steve only to the extent that defendants need to know that early guilty plea ought to equal a lesser punishment than running a failed defence - but this defence ought to succeed if fairly heard and is also in the public interest.

1 It was my decision to advise that some experts did not consider this a viable defence and I suggested that those considering using this defence seek legal advice. That seemed sensible. I am no legal expert and, given that this defence has not been tried yet, I felt obligated to suggest this.

2 If I found myself in this suituation, I would not accept a caution and would defend myself against a bad law. I posted a blog to this effect with regard to George Michael's recent bust.

3 I think that it is a pity that legal experts have not done more to help people like Ed in this siutation. My sense is that most defence lawyers are operating almost exclusively from the perspective of securing the lightest sentence, rather than challenging lousy law and this makes it hard for them to see outside this limited box.

4 I didn't say that this had no chance. I was actually much more positive than some.

5 Good on you all for getting stuck, both to the legal defence, and the debate around it. I'd far rather hear and see this stuff in the open.

I like the legal argument, it seems logical to me as a layman, if you look at it from the property aspect.

The 'Freeman on the land' movement seems to be organising, which may see some challenges based on Common Law, the right to legal protest (art61 Magnacarta), and 'Commercial Redemption' tho it all sounds very simple, I suspect it will be far from it in practice.

There has been a great deal of correspondence between Transform Edwin and his team, and various legal contacts of ours. Most of it is technical often nerdy legal detail about interpretation of wording, margins of appreciation, and how different legal systems interact with each other and so on. It probably isnt blog material, but isnt something we are holding back. The dialogue is also unresolved and ongoing.

I think the sensible thing to do is to see how the case unfolds and write it all up at the end with the relevant discussion about ways forward.

This blog has many contributors; blog entries or comments posted to blog are not necessarily the views of Transform Drug Policy Foundation. For official comment or position statements on any given topic, or with any feedback or queries, please contact Transform. Transform Drug Policy Foundation is a registered charity No. 1100518